Ralph J. Bianchi v. State ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00155-CR

Ralph J. Bianchi,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the County Court

Madison County, Texas

Trial Court No. E437385

MEMORANDUM  Opinion

            Ralph Bianchi filed an appeal from a conviction in justice court in Madison County, Texas. 

            The Clerk of this Court warned Bianchi by letter that his appeal was subject to dismissal for want of jurisdiction because appeals from the justice court are to be heard by the county court in a trial de novo, that is, a new trial.  Tex. Code Crim. Proc. Ann. art. 45.042(a), (b) (Vernon 2006); Tex. R. App. P. 44.3.  Based on a review of the documents provided to the Court, it did not appear to the Clerk that Bianchi’s appeal was first heard by the county court.  The Clerk further warned Bianchi that the Court may dismiss this appeal unless, within 21 days of the date of this letter, a response is filed showing grounds for continuing the appeal.

            Bianchi responded to the Clerk’s letter, acknowledging that he filed his appeal in the wrong court. Accordingly, this appeal is dismissed.  Tex. R. App. P. 44.3.

                                                                                    TOM GRAY

                                                                                    Chief Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal dismissed

Opinion delivered and filed July 11, 2007

Do not publish

[CR25]

irmatively found the use or exhibition of a deadly weapon during both offenses and sentenced Boutte to two years imprisonment for each with both convictions to run concurrently.

      A defendant who has plead guilty or nolo contendere in exchange for deferred adjudication must comply with Rule 25.2(b)(3) of the appellate rules when he seeks to appeal a subsequent sentencing. See Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996) (applying former appellate rule 40(b)(1) now Rule 25.2(b)(3)). Rule 25.2(b)(3) provides in pertinent part that if a defendant seeks to appeal:

...from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:

(A) specify that the appeal is for a jurisdictional defect;

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C) state that the trial court granted permission to appeal.

Tex. R. App. P. 25.2(b)(3).

      Boutte plead guilty to the original charges, and the punishment he received did not exceed the punishment recommended by the State. After his adjudication of guilt, Boutte filed a general notice of appeal in both causes, neither of which recite that the appeal is for a jurisdictional defect; that the substance of the appeal was raised and ruled on by pretrial motion; or that the trial court granted him permission to appeal. Thus, Boutte’s notices of appeal do not comply with the requirements of Rule 25.2(b)(3).

      Because Boutte’s notices of appeal do not comply with these requirements, we have no jurisdiction over these appeals. Watson, at 714. See Tressler v. State, 986 S.W.2d 381, 382 (Tex. App.—Waco 1999, no pet.). This holding has been uniformly accepted by the courts that have addressed this issue. See Williams v. State, 962 S.W.2d 703, 704-706 (Tex. App.—Fort Worth 1998, no pet.); Okigbo v. State, 960 S.W.2d 923, 925 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd); Walker v. State, 970 S.W.2d 27, 29 (Tex. App.—Dallas 1997, no pet.); Carothers v. State, 928 S.W.2d 315, 317 (Tex. App.—Beaumont 1996, pet. ref'd). Accordingly, we dismiss Boutte’s appeals for want of jurisdiction.

TOM GRAY

                                                                   Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed

Opinion delivered and filed on February 9, 2000

Do not publish